Wednesday, April 24, 2013

How a bill becomes slaw -- an autopsy of gun-control legislation in Washington

Before we move off the issue of gun control — and it’s dead for now, believe me, for reasons this column will make clear — let’s take a close look at just how something as popular as expanded background checks failed to pass the U.S. Senate last week.

The facile shorthand is that the Republican minority took advantage of the sometimes baffling rules of the Senate to once again thwart the basic concept of majority rule.

After all, the background-check measure, known informally as Manchin-Toomey after its co-sponsors, Democratic Sen. Joe Manchin of West Virginia and Republican Sen. Pat Toomey of Pennsylvania, ended up with 54 “yes” votes and only 46 “no” votes.

But in these highly polarized days, as you’re probably aware, nearly every proposal requires a 60-vote super-majority to pass.

If a bill doesn’t have 60 votes, opponents will use the filibuster, the threat of a filibuster or simply a portentous “ahem!” to kill it.

But what happened with Manchin-Toomey was a bit more complicated than that. After the overall gun control bill emerged from the Senate Judiciary Committee earlier this month, the bipartisan Manchin-Toomey background-check amendment became the centerpiece because, gun control advocates hoped, it was modest enough to win super majority support.

Democratic Senate Majority Leader Harry Reid of Nevada and Republican Senate Minority Leader Mitch McConnell of Kentucky agreed to streamline the process of dealing with Manchin-Toomey and other proposed amendments by dispensing with protracted debate, filibuster threats, cloture motions and the like and simply setting the threshold for passage at 60 votes.

Why didn’t Reid, with his upper hand, try to negotiate or bring public pressure to bear for a simple-majority threshold?

Three reasons.

First, such a request requires the unanimous consent of the Senate, and Republicans weren’t going to agree to that, at least not on Democratic amendments. “We would have agreed to a simple majority on our amendments,” McConnell’s communication director Don Stewart told me Tuesday.

Second, such a request, if agreed to by the Republicans, would have opened the door for passage of bill-killing amendments favored by the GOP.

Here’s what you may have missed in all the hand-wringing about how a 54-46 victory still translates into defeat: Republican Sen. John Cornyn of Texas introduced a National Rifle Association-backed amendment to “guarantee the rights of gun owners to carry concealed weapons across state lines and within other states,” as his news release put it.

That proposal — simply put, to gut more restrictive concealed-carry laws such as those in New York and proposed for Illinois and make gun permits as portable as driver’s licenses — got 57 votes, including the votes of 13 Democrats. Illinois’ Mark Kirk was the lone Republican to oppose the amendment.

And an amendment proposed by Iowa Republican Sen. Chuck Grassley to replace the whole bill with an “alternative” but weaker plan to bolster the background-check system and toughen penalties for gun crimes got 52 votes.

It’s hard to know how many of those votes were symbolic and might have changed were there a 50-vote threshold, but it’s easy to see that majority rule cuts both ways when it comes to gun control.

Even more sobering for those hoping for greater restrictions was that neither magazine-size limits nor an assault weapons ban received majority support in the Senate.

So the third reason that Reid and the Democrats didn’t make more of a fuss about the amendment votes was that there was no way the final bill was going to survive a filibuster if the amendments couldn’t get 60 votes in the first place.

President Barack Obama said last week’s defeat was just “round one” and that “this effort is not over.”

But it is over. I’m calling this fight. As all this maneuvering suggests, the partisan divide is too sharp, the legislative rules too daunting and the energy of gun-rights supporters too sustained to hope to change the outcome in this Congress.

Senate Majority Leader Harry Reid (Nev.) chose to (ask) for
the Senate’s unanimous consent to require 60 votes for each of the nine
amendments. Since no senators objected, that’s where the bar is set.
So, why didn’t Reid try to get the unanimous consent agreement to set all amendment votes at a 51-vote threshold?
Because to do that would have opened the bill up to the very likely
possibility that amendments favored by gun rights advocates would be
added to it.

Democratic sources tell me -- and Republican sources agree -- that Reid realy didn't have a choice in the matter; that it was understood that the GOP would not have gone along with a simple majority threshold on all amendments.

Majority Leader Harry Reid was free to bring the deal struck by West Virginia Democrat Joe Manchin and Pennsylvania Republican Pat Toomey to the floor for an up-or-down vote...But under Senate rules, a simple majority vote would have opened the measure to up to 30 hours of debate, which would have meant inspecting the details. The White House demanded, and Mr. Reid agreed, that Congress should try to pass the amendment without such a debate.

According to my reporting, that passage starkly misrepresents senate rules.

Stuart Rothenberg, editor of Roll Call, says that Reid was overambitious and misread the legislative moment:

Reid’s strategy didn’t doom Manchin-Toomey, but it doomed possible compromises on gun trafficking, school safety and more money for criminal prosecution and mental health.

So while 45 senators prevented passage of a bill expanding background checks and 48 senators defeated the Grassley amendment, which included many of the provisions of Manchin-Toomey, Reid probably is most responsible for the Senate’s inability to pass any bill to respond to the Newtown shootings.

At the New Republic, Alec McGillis notes the asymmetrical forces at work:

The undemocratic nature of the upper chamber of our legislative branch of government has been noted many times—it is, as the New York Times observed in an in-depth piece
just a few months ago, “in contention for the least democratic
legislative chamber” in the world, with the 38 million people who live
in the 22 smallest states represented by 44 senators, while 38 million
Californians are represented by two. (And) there are few issues
where it makes itself felt as strongly as on guns....

At the time (the Constitution was written), the largest state,
Virginia, was 11 times bigger than the smallest, Delaware. The ratio
between California and Wyoming is now 66 to 1, yet they have the same
sway in the Senate. Could the Founders have envisioned that? And are we
OK with that?

I'm not OK with it, but I'm not a misty romantic about the whole idea of states anyway. And I'm not idealistic enough to think we could ever amend the Constitution to disempower the small-state swaggerers.

Comments

You can follow this conversation by subscribing to the comment feed for this post.

There will never be any type of background checks until the "anti-gun" proponents kick out the gun confiscation loons.
Every time the more rational anti-gun people say there won't be any confiscations, the loons come out of the woodwork & say, yes, they do want confiscations.

I'm sorry, but I have yet to hear anyone discussing gun confiscation aside from paranoid gun rights nuts who are convinced that ours is an oppressive government and that they're the next George Washington ready to lead the rebel army. Or would that be Robert E. Lee?

Why then did Obama place himself in such a vulnerable position. Watching Gabby Giffords and the parents of Newton was excruciating. Putting them through this three ring circus was wrong. Fine let them lobby and hold press conferences and speak out. But when the President stands along side pushing the agenda morally and politically you better damn well be sure you have the votes. This was a national belly flop of epic proportions. That Rose Garden blow up with the parents was emotionally wrenching. Did he really not know he was going to lose in the Senate?Would this humiliation have happened to Clinton or LBJ? God he starts the term as a lame duck now looks like a wounded duck and gun control ends up a dead duck.

The main reason we need filibuster reform is to ensure that Senate majorities have the ability to work their will. But running a close second is the need to hold Senate majorities accountable. In the present Senate, Democrats should not be able to hide behind Senate rules to point the finger at Republican obstructionism for their failure to pass a bill. Allowing them to do so lets them avoid taking a clear stand on what Democrats will do if you elect enough of them to form a majority. Moving back to majority rule would increase accountability - voters could look at the record of a particular senate and decide if they wanted more of that sort of thing, or if they wanted to go in a different direction.

And EZ, idealism aside, equal state representation in the Senate is the only feature of our government that cannot be altered by constitutional amendment. See the last clause of Article 5. It's kind of a paradox - what would happen if somehow a constitutional amendment altering equal representation was ratified? I guess the amendment would be unconstitutional, but that's hard to comprehend.

Ultimately, we're better off (1) moving to majority rule in the Senate in the short run, and (2) in the long run, trimming the power of the Senate to shape policy, much like the House of Lords has been marginalized in England. Were I rewriting the Constitution, I'd restrict the Senate a kind of veto authority over legislation passed by the House - if a simple majority of Senators rejected legislation proposed by the house within 90 days, the House would have to pass it by a 3/5 majority or something. That fulfills the "saucer" function Senate-lovers love while staying true to democratic values like one person one vote.

ZORN REPLY -- It's irritating for those who have not memorized the constitution when someone says " See the last clause of Article 5" without simply freakin' quoting it. Sheesh.
Here it is: "No State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
I fail to see why an amendment striking that clause would be any more "unconstitutional" than, say the amendment repealing prohibition. No paradox about it at all.
Not really worth entertaining because the true paradox is that the process for amending the constitution makes it impossible to do without the consent of a considerable number of states whose "franchise in the senate" would be diminished.
It's as thought the constitution said "everyone whose last name starts with M through Z gets to cast three votes on election day," and required, under this system, a majority vote to change the blatantly undemocratic allotment of voting rights. The deck is stacked.

Democrats had to concede to some Republican shenanigans to avoid other Republican shenanigans, and somehow this "cuts both ways?"

That's not nuance, that's false equivalency.

ZORN REPLY -- I'm not sure your can put a 57-vote majority in favor of reciprocity on concealed-carry permits into the category of "shenanigans."
Neither party wanted a straight majority vote on these issues.

Because Newtown was so shocking that he thought it would finally open up the possibly of doing something. It may even have shocked him enough to bump the issue up the list of things on which he was willing to spend whatever political capital he has.

So wait the President got 4 Republican votes but Reid and the President couldn't stop 4 Democrats, one of whom isn't up for election 2014, and one just announced his retirement, from voting no. Damn those Republican Shenanigans.

ZORN REPLY -- Even if every Democrat had held firm they didn't quite have the votes. Damn that mathematics!

What Pan said. When the President bends over backwards to get GOP support, it's like Lucy and the football. But Obama gets blamed. Really kind of strange. Maureen Dowd came up with the answer I guess. He should have put her in charge of this.

Americans would much rather watch innocents get slaughtered than entertain the thought that anything could be done about gun violence. This is despite examples from around the world from other countries - American exceptional-ism at it's finest.
I believe EZ is correct on this one.

This was a bad bill. You could still sell a gun without paperwork and registration to anyone you called a "friend". It did nothing to address the problems of the mentally ill, and it really did nothing that would have prevented Newtown. Does that mean that we should do nothing? (I can hear some people getting ready to ask already.) No. But something is not always better than nothing.

Like Richard, I was sick of seeing Giffords and the Newtown parents. But not as sick as I am of Obama lecturing/teaching us from his bully pulpit, whether it is guns, or taxes or same sex marriage. He really should have known that he didn't have the votes. But of course he doesn't really know how Congress works, since he got bored there after a couple years and decided to run for President.

"I'm sorry, but I have yet to hear anyone discussing gun confiscation aside from paranoid gun rights nuts who are convinced that ours is an oppressive government and that they're the next George Washington ready to lead the rebel army. Or would that be Robert E. Lee?"

Spoken like somebody who believes the government can do no wrong adn wouldn't defend himself from a horsefly.

--[[I'm sorry, but I have yet to hear anyone discussing gun confiscation aside from paranoid gun rights nuts who are convinced that ours is an oppressive government and that they're the next George Washington ready to lead the rebel army. Or would that be Robert E. Lee?

Posted by: David S. | Tuesday, April 23, 2013 at 08:25 PM]]

Missouri gun bill proposed in February would give owners of soon-to-be-outlawed guns 90 days to turn them in. Else they become felons. I found this in a 30-second search of "Missouri gun confiscation bill"

ZORN REPLY -- Outlawing possession of something isn't the equivalent of house to house confiscation, which is the image you'd like in your mind. THey never "confiscated" handguns in Chicago in this fashion.
But, OK, say a government does want to outlaw a certain kind of existing gun. Do you think they should give everyone a nice 180 day notice and then grandfather everyone in?
You remind me of those who speak of taxation as "confiscation." Just overheated rhetoric.

EZ - I also quickly found stories about officers going door to door in California confiscating, yes, confiscating, weapons from people who had become ineligible under California law. This would include (from one of the stories) those who had been in mental health facilities and in at least one case, someone married to someone who'd been in a mental health facility, because his having guns counted as her having access to them.

This is house-to-house confiscation.

I've said before, I'll say it again: I'm not a gun person. I don't own any and don't plan to. But that doesn't mean people who do are rabid right-wing cranks drooling about the "gubmint." There are whole swaths of this country where neighbors and help are miles away. There are people who hunt, and keep their rifles in gun safes.

Lately I've read a lot about these bills & amendments, and I don't remember anyone on the left talking about taking away everyone's guns (with the exception of what Beth referred to, which is hardly confiscation because it leaves a lot of other kinds of guns in the hands of people). However, I have read a LOT from the NRA or other groups on the right (and not even all of the gun-owners groups, just some) about how somehow a registry would magically appear from the background checks, and somehow there would be enough soldiers, etc to go to EVERY house in the country who owns a gun & take them all away. Sort of like how some want to just deport all 12 million undocumented immigrants, even though that would cost billions of dollars & would be physically impossible, anyway, because they truly haven't thought these things through before they blurt it out.

Interestingly, there have been background checks in some states for years, and even "registries", and amazingly all these people still have their guns. How did that happen - obviously those states meant to confiscate all those guns but have somehow not gotten around to it yet?

Oh, and the Newtown parents and Gabby Giffords and her husband WANTED to be there & want to be "used" - both groups have become quite active in the promotion of sensible gun legislation - if you've ever seen them interviewed, you'd know.

@To any gun owner who wishes to answer - Does the chance (however high or low you believe that chance to be) that your gun will be used to take an innocent life (i.e., accident or intentional killing that is illegal) make you willing to give up your gun? If not, may I assume you would have no objection to a law mandating the death penalty for the owner of a gun that takes an innocent life? If you do object, why does your answer change depending on whether the innocent life is *your life*? Why are you sure enough to bet someone else's life but not your own?

The confiscation that Garry is referring to (and I haven't seen anyone but the paranoid right fringe harping on) is the outlawing of all firearms. Basically, repealing the 2nd amendment.

What you are giving examples of is the routine enforcement of laws.

JL,

I think you win the price for hyperbolic post of the week. Your argument would support the death penalty for people whose car (regardless of whose driving)is involved in a vehicle accident causing death also.

A more reasonable argument is why would gun owners object more strongly to regulation (and even registration) requirements that aren't even as stringent as those for car ownership.

"Does the chance (however high or low you believe that chance to be) that your gun will be used to take an innocent life (i.e., accident or intentional killing that is illegal) make you willing to give up your gun? "

I don't own any firearms, but I do own a car.

Every single day I live in the shadow of fear that someone will steal my car and kill someone with it.

You're horrified by how the parents felt after the proposal failed and Obama's the bad guy, not the Senators who cast the votes that actually lead to the wrenching reaction? I wonder what the people who had the wrenching experience would say about that?

Mike M (10:24):

I get your sarcasm, Mike. You don't actually worry at all about your car being stolen and the thief killing someone with it, so it's silly to worry about stolen guns, and therefore gun controls are silly. But If your level of day-to-day worry about theft and fatality is the standard that should decide requirements for licenses, sales records and registration, I take it that you think the whole enterprise of requiring driver's licenses and registration of vehicles used on public roads is completely ridiculous.

I have still yet to hear a compelling objection to universal background checks for gun sales, a proposal that was watered down in this apparently unacceptable legislation.

" I take it that you think the whole enterprise of requiring driver's licenses and registration of vehicles used on public roads is completely ridiculous."

It is ridiculous. The whole enterprise of requiring driver's licenses and registration is completely ridiculous if it is intended to prevent people from stealing vehicles, and crashing them into innocent people and killing them.

It is completely ridiculous to expect requiring driver's licenses and registration of vehicles has anything to do with preventing deaths due to stolen vehicles.

Sorry, pal. On Wednesdays I prefer logic over emotion. Catch me on Tuesdays or Thursday, and I'll be right with ya, bro. Those are my "If it saves one life..." days.

[[Lately I've read a lot about these bills & amendments, and I don't remember anyone on the left talking about taking away everyone's guns (with the exception of what Beth referred to, which is hardly confiscation because it leaves a lot of other kinds of guns in the hands of people). ]]
and
[[The confiscation that Garry is referring to (and I haven't seen anyone but the paranoid right fringe harping on) is the outlawing of all firearms. Basically, repealing the 2nd amendment.
]]

Really? OK, I've got it: "Confiscation" is a right-wingnut term. But when authorities are CLEARLY confiscating guns "confiscation" suddenly isn't really "confiscation," because they're not taking away everyone's guns. That's a joke of an argument. In California, I'm not sure what else you'd call it when law enforcement authorities are coming around and ... er, confiscating ... guns from people who had duly registered their guns and now, because of changes in laws are newly ineligible to own them. Confiscation is confiscation -- and if you think gun owners aren't worried about this being a new trend, so to speak, you clearly haven't been paying attention.

THe Washington Post had a story in today about people being evenly split, fairly, in their reactions to the law. Here's a point made on hotair, and yes, I know it's a conservative site and therefore is unworthy here, where an opinion from dailykos or salon or slate would be venerated and treated as gospel. The legislation over-reached, in my own opinion, and worse, all the public comments made by Obama and others tended to a) treat gun owners as nitwits and b) ANYONE against "their" bill as wanting children to die.

[[They only started making those arguments, though, after demonizing gun owners and the NRA and demagoguing on a tragedy that those solutions didn’t actually address. Had the White House taken the more moderate tenor and position immediately rather than seizing on a ban of so-called “assault weapons,” they might have made progress on expanded background checks, and may have even gotten the NRA (which has previously endorsed those in concept, if not in the details) to either support them or remain agnostic.

Here’s a pro-tip for politicians: If you want to make a reasonable case, don’t start by blaming all gun owners for the acts of a madman, and then insinuate that their opposition to legislative non-sequiturs means they don’t care about children or crime. This became a referendum on the principles of gun rights because Obama and his administration made it one, and they fell on their face for that reason.]]

Don't forget that the main purpose of a car (at least MY car) is to get me to & from places, and the main purpose of a handgun is........???? Not to hunt for food since most hunters use other types of guns, but to shoot someone. I do know that there has been at least one case of some person running down someone with a car, but those cases are pretty few & far between (the ultimate drive-by, I guess).

I guess you win (based on post length at least). I'm in favor of confiscating legally banned items including guns belonging to people adjudicated mentally unfit. Under your definition, the government has no right to pass any new restrictions on ownership. Good to know you would have Adam Lanza's back had the government/healthcare system worked better and had come to confiscated his weapons.

Also, "they...may have even gotten the NRA (which has previously endorsed those in concept, if not in the details) to either support them or remain agnostic." Really, because Lapierre was on Meet the Press one week after Newtown saying no new laws would be tolerated.

"ZORN REPLY -- I'm not sure your can put a 57-vote majority in favor of reciprocity on concealed-carry permits into the category of "shenanigans."
Neither party wanted a straight majority vote on these issues."

Inserting an amendment to weaken gun-related regulations into a bill designed to strengthen gun-related regulations = Republican shenanigan.

"ZORN REPLY -- Even if every Democrat had held firm they didn't quite have the votes. Damn that mathematics!"

Filibuster of bill with overwhelming popular support, thus making a clear Senate majority "not quite the votes" = Republican shenanigan.

If I'm misrepresenting your point, please clarify it. You appeared to be associating any "confiscation" for any reason with the universal confiscation fear that Garry implies ruined the chance of passing the law.

If you weren't trying to use any random report of a weapon being confiscated to bolster the fear of universal confiscation, what is your point?

Wayne Lapierre is the NRA; so can I assume that you won't continue to argue that the NRA would have "either support (the laws) or remain agnostic."

LizH,

I see your point and remember that I am in favor of firearms registration, but similar to baseball bats and bows and arrows, some people (myself included) do own firearms for sporting reasons. I personally don't even keep ammunition in the house for safety reasons.

@DRX; If you want to turn tragedy like Newton into a crucible like Obama did then you better make sure you win. This was an epic fail on his part. A gross miscalculation. It must have felt pretty humiliating to stand there with those parents after that vote.

ChrisH -- I am about done here. I take exception (and have, several times) with your theory that confiscation has to be universal in order for it to be a legitimate fear. Just because Garry implies it, doesn't mean he's right. I then came up with examples of confiscation -- and you argue with that. THAT's my point -- your elasticity in interpreting actions, motives and laws.

And the quote about Lapierre was not mine. It was from the hotair article and I was using it to point out a different point of view, including that Obama over-reached. Badly. And that led to his defeat.

I'm not trying to be belligerent, but Eric and I were originally refuting Garry's fear of universal confiscation being a broadly supported goal of the left wing. You jumped in with examples using a different definition of confiscation. If you saying that the current confiscation examples that you provided (e,g,m confiscation due to a specific type of weapon being outlawed) are also wrong, I've already told you why I disagree. Either explain why your fear is justified/right or let it go.

Regarding LaPierre, usually people don't post quotes with which they don't concur without stating they disagree.

@ChrisH: I've never said that confiscation is a broadly supported goal of the left wing.
What I've said is there is a small group that demands confiscation & that sets off the gun owners, which gets the NRA spending big.
All I want are the groups that want background checks is that they have nothing & I' mean nothing to do the confiscation loons.
They're not hurting the cause of background checks, they're destroying any possibility of it happening.

Barry: "'the main purpose of a handgun is..... to shoot someone', Really? I'll bet more people have shot at targets than people."

Why do people shoot at targets? To hone their skills at shooting people, correct? When it comes to handguns, target practice papers typically don't have outlines of tin cans on them, if I'm not mistaken.

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
More about Eric Zorn

Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.